Monday, April 14, 2008
Jury selection is expected to begin today in the trial of an Ohio woman accused of stabbing her roommate in the head with an ice pick, and those jurors selected will likely hear testimony concerning the victim's statements identifying the defendant as her assailant. Fifty-four year old Sandra Matthews-Johnson is accused of stabbing her roommate, Ottie Marie Tomlinson, below the left ear with an ice pick while the two fought in the home that they shared. The ice pick broke off inside Tomlinson's head, so medics did not find the wound until after the victim was taken to an area hospital. Matthews-Johnson was initially charged with assaulting Tomlinson, but those charges were upgraded to murder after Tomlinson died from her injuries a month later. Before she died, however, Tomlinson told police investigators that Matthews-Johnson stabbed her and wrote "Sandy" on a piece of paper in response to questions by the investigators about who attacked her. Attorneys for Matthews-Johnson argued that these statements were inadmissible hearsay, but Judge J. Timothy Campbell overruled these objections, paving the way for their likely admission at trial. This ruling was potentially correct, but also very possibly incorrect.
First, Tomlinson's statements were both hearsay under Ohio Rule of Evidence 801(c) in that they were statements, other than those made by the declarant while testifying, offered to prove the truth of the matter asserted: that Matthews-Johnson stabbed Tomlinson. Thus, those statements were only admissible if they met some applicable hearsay exception. Second, pursuant to the Supreme Court's opinion in Crawford v. Washington, the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. While courts are split as to when a hearsay statement is "testimonial," most hold that a hearsay statement is "testimonial" when the statement was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial. I think it is safe to say that any court would deem Tomlinson's statements "testimonial."
Thus, for Tomlinson's statements to have been admissible, they would have needed to meet some hearsay exception which also obviated any Confrontation Clause concerns. First, Tomlinson's statements could have constituted "dying declarations," which the Supreme Court has implied are admissible without regard for the Confrontation Clause. See Crawford, 541 U.S. at 56 n.6. Under Ohio Rule of Evidence 804(B)(2), statements by an unavailable declarant are admissible in a homicide or civil case if they were made by the declarant while believing that her death was imminent, concerning the cause or circumstances of what the declarant believed to be her impending death. Obviously, the question would be whether Tomlinson believed her death was "imminent" when she spoke with the police investigators, but it would seem to me that the fact that she lived for at least a month after the attack would indicate that she did not think her death was "imminent" when she spoke with the investigators. Of course, if Tomlinson spoke with the investigators soon before her death, it is possible that her statements were "dying declarations."
Second, Tomlinson's statements could have been admissible under the "forfeiture by wrongdoing" docrtine contained in Ohio Rule of Evidence 804(B)(6). Under this doctrine, a declarant's hearsay statements are admissible without regard to the rule against hearsay and the Confrontation Clause when the defendant's wrongdoing prevents the declarant from testifying at trial. Some courts have found that this doctrine applies only in the witness tampering situation where a defendant kills or otherwise renders a prospective witness unavailable after she allegedly committed the subject crime while other courts find that it also applies when the prospective witness is the victim herself. The Supreme Court is set to decide whether the doctrine can apply in this latter scenario in Giles v. California. That case, however, should have no effect on Ohio, which has already limited the doctrine to the first scenario on its own volition.
The Staff Note to Ohio Rule of Evidence 804(B)(6) indicates that "the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...." Thus, in State v. McCarley, 2008 WL 375842 (Ohio App. 9 Dist. 2008), the Court of Appeals of Ohio found that the doctrine did not apply to statements made by a murder victim in the defendant's trial for her murder. Thus, the forfeiture by wrongdoing doctrine seemingly would not apply to Matthews-Johnson's case.